Counsel Q & A: Sir Stanley Burnton

CURRICULUM VITAE

Called to the Bar in 1965, Stanley Burnton practised in general common law and then from 1976 as a commercial lawyer. He took Silk in 1982 and acted as an advocate in commercial arbitrations and as an arbitrator. Appointed to the High Court Bench in July 2000, he was the judge in charge of modernisation, IT and the Court Estate and one of the original three judicial members of the Board of Her Majesty’s Court Service. He was a member of the Civil Justice Council. In April 2008, he was promoted to the Court of Appeal. On 25 October 2012, when he reached the age of 70 , he retired as a judge and returned to his former chambers, One Essex Court, to practise as an arbitrator. He has been appointed as arbitrator in LCIA, ICC, SIAC and ICSID arbitrations.

Is there any aspect about sitting as a judge that you miss – or don’t miss?

I miss having the opportunity to right wrongs suffered by individuals at the hands of the more powerful or the unscrupulous, whether it be a public authority (as in the case of Sharon Shoesmith) or businessmen (as in the Consolidated Finance case [2013] EWCA Civ 475). I also derived satisfaction from deciding cases having wider, and sometimes constitutional, significance beyond the immediate parties, as in the case about the care workers who had no real remedy against their unfair suspension or dismissal (Wright v the Secretary of State for Health [2006] EWHC 2886 (Admin)) and the more recent case about the back to work regulations (Reilly v Secretary of State for Work and Pensions [2013] EWCA Civ 66). Saving the Welsh badgers (the Badgers Trust case [2010] EWCA Civ 807) gave me some satisfaction too.

Has your transition to arbitrator posed any fresh challenges?

No. I had a commercial practice, appeared in arbitrations, and acted as an arbitrator before I was appointed to the Bench. In a sense, I have now returned to my professional home.

The great majority of commercial arbitrators, if not all, have wide commercial experience, and are able to adopt a flexible procedure and decide the issues before them expeditiously and with finality. I suspect the fact that arbitrators know they are paid to listen to the evidence and submissions is a great incentive to patience.

In the same survey, one of the worst features of arbitration was perceived as a ‘lack of insight into an arbitrator’s efficiency’ and a recurring theme was the need for a higher degree of accountability. What do you think might be done to counter this perception?

If I am the arbitrator who is to draft the award, I try to do so as quickly as possible after the completion of the hearing and final submissions (as I did as a judge). I think that delay in producing the award leads to concerns as to inefficiency. However, some of the delay may be attributable to the arbitral institution in question. I think that the LCIA is a model of its kind, but not all are so efficient. The only real means of introducing accountability is for awards to be reviewed on appeal, but one of the attractions of arbitration is the general absence of appeals, which lead to delay and may keep successful parties out of their money.

How would you like to see the arbitration landscape develop – innovations, improvements, changes?

I am generally happy with the present landscape.

Outside of London, do you have a preferred arbitral seat/centre – and why?

No. I am a Londoner and enjoy London, its theatres, concerts and art. We have a full family life in London. The facilities in London are excellent, particularly at the IDRC.

What qualities do you think make a good arbitrator?

Wide experience of the procedural directions that are likely to lead to an efficient and speedy determination of the arbitration. A willingness to listen, tempered with a speedy but thorough analysis of the legal and factual issues and evidence. Arranging one’s diary so that the arbitrator or arbitrators who are to participate in the drafting of the award have the necessary time available immediately after the completion of the hearing and final submissions.

What tips would you give counsel appearing in arbitrations?

Be on top of the papers and evidence; do not make unreal submissions; ensure that only the documents that the arbitrators need are in the ring binders or computer folders for the final hearing; avoid repetition and do not state the obvious.

What advice would you give to a barrister who wishes to sit as an arbitrator?

Go to arbitration conferences and seminars: be seen. But be patient: if solicitors (who make most of the decisions) think you are suitable, they will appoint you.